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Michael Smith

@msmith750.bsky.social
9.5K followers 2.1K following 2.4K posts

Associate professor of law at University of Oklahoma College of Law. Researching constitutional law, criminal law, and legal oddities. law.ou.edu/node/716

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Michael Smith @msmith750.bsky.social · 22h
Got the water bill after I had to refill the whole damn pool after it sprang a leak and drained itself in less than a week. Outlaw these things!!
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Michael Smith @msmith750.bsky.social · 07/10/2026
I am merely a purchasing agent for my squirrels
Amazon preference list with entries all suggesting I'm obsessed with buying and repurchasing raw nuts and seeds.
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Michael Smith @msmith750.bsky.social · 07/10/2026
My Oxford Commentaries on State Constitutions check-ins aren't going unnoticed.
Amazon stalking dossier indicating that I likely prefer academic and scholarly publications, show preference for Oxford Commentaries series (listed under "Brands," lol), likely study constitutional law intensively and am likely systematically building a constitutional law library.
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Michael Smith @msmith750.bsky.social · 07/10/2026
It got quiet in the room just before a faculty meeting began this afternoon and I think most (all?) of my colleagues overheard the end of a conversation when I mentioned that I want to write an article where every cite begins with "but see."
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Michael Smith @msmith750.bsky.social · 07/10/2026
Bugs Bunny just before he delivers terrible news.
Elizabeth Holmes tweef: "I really don't think you are ready for this doc"
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Quinn Yeargain @yeargain.bsky.social · 07/10/2026
NEW: Montana Supreme Court unanimously strikes down several provisions of a 2023 state law that significantly impaired the citizen initiative process—most significantly by imposing a $3,700 filing fee and prohibiting the resubmission of any failed measure. Link here: courts.mt.gov/external/ord...
Justice Beth Baker delivered the Opinion of the Court. ¶1 Mae Nan Ellingson, Jerome Leondorf, Arlyne Reichert, Hal Harper, Bob Brown, Evan Barrett, C.B. Pearson, Carole Mackin, Mark Mackin, and Jonathan Motl (collectively, “Ellingson” or “the Ellingson Plaintiffs”) sued the State of Montana, Governor Greg Gianforte, Attorney General Austin Knudsen, and Secretary of State Christi Jacobsen (collectively, “State”) in the First Judicial District Court to invalidate new laws governing the statewide initiative process. Ellingson alleged that several provisions of Senate Bill 93, 2023 Mont. Laws ch. 647 (“SB 93”), unconstitutionally diminished the people’s reserved power of direct democracy by imposing qualifications and procedural steps not contemplated by the Montana Constitution. In two rulings on separate motions, the District Court granted the Ellingson Plaintiffs summary judgment on four of their claims and denied relief on seven others. The parties stipulated to dismiss without prejudice all claims not resolved in Ellingson’s favor. Following entry of judgment, the District Court denied Ellingson’s motion for attorney fees. ¶2 The State appeals three of the District Court’s summary judgment rulings. The Ellingson Plaintiffs cross-appeal the denial of their request for fees. Restated, we consider the following issues on appeal: 1. What standard governs a Montana court’s review of a constitutional challenge to laws regulating the initiative and referendum process? 2. Does § 13-27-221, MCA, prohibiting resubmission of a statewide ballot measure for four years after defeat of a substantially similar measure, violate the Montana Constitution?3. Does § 13-27-228, MCA, authorizing legislative interim committees to vote on proposed ballot measures and place the result of the vote on the face of the petition, violate the Montana Constitution? 4. Does § 13-27-215, MCA, imposing a $3,700 filing fee on all proposed ballot measures, violate the Montana Constitution even though it authorizes the Secretary of State to waive the fee for hardship? 5. Did the District Court abuse its discretion when it denied Ellingson’s motion for attorney fees under the private attorney general doctrine? We affirm on all issues.
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Michael Smith @msmith750.bsky.social · 06/10/2026
Not yet. There are many.
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Michael Smith @msmith750.bsky.social · 06/10/2026
Columbo and Ron
Columbo the black and white cat resting on the front steps and looking at the camera. Ron the possum is off to the right, eating some catfood.
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Michael Smith @msmith750.bsky.social · 05/10/2026
Law reviews are opening!
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Michael Smith @msmith750.bsky.social · 04/10/2026
Hidden Columbo
Columbo the cat resting in a jungle of plants, looking out at the camera.
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Michael Smith @msmith750.bsky.social · 04/10/2026
Campus turtle
A turtle (tortoise?) walking from the edge of a sidewalk onto a lawn.
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beetle moses @beetlemoses.bsky.social · 04/10/2026
Three panel comic. Panel 1: a high school basketball game. The home team is down 9 points, and some players are looking discouraged on the bench. The coach points to a player just out of frame and says, “flippers, you’re in!” Panel 2: the away team attempts a deep 2-point shot, possibly to beat the buzzer, which is blocked by Flippers, a whale who doesn’t even have his arms up. Panel 3: the game ends and the home team excitedly crowd around Flippers, who won them the game. A player from the away team looks stunned, with his hands on his head.
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Michael Smith @msmith750.bsky.social · 04/10/2026
There should be a rare, happy German word for listening to a mediocre album that you bought for pennies and stumbling across a song that's way too good to be on it.
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Anna E. Carpenter @annacarpenter.bsky.social · 03/10/2026
@uofoklahomalaw.bsky.social Professor @staceytovino.bsky.social gave a CLE for the ABA Section on State, Local, and Tribal Government Law on "Government Use of Health Data: HIPAA, Oversight, and Responsible Data Governance.” Description here: learningcenter.americanbar.org/courses/332918
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Michael Smith @msmith750.bsky.social · 02/10/2026
Hooraaaay a new book has arrived
Ted Cruz biography of Clarence Thomas.
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Michael Smith @msmith750.bsky.social · 02/10/2026
Do any of Bryan Garner's dozen or so treatises say anything about avoiding clichéd writing, because Jesus Christ. www.abajournal.com/columns/arti...
abajournal.com
What are some good prompts when using AI for legal writing? Bryan Garner has some thoughts
Bret Stephens, the Pulitzer Prize-winning New York Times columnist, recently pleaded with readers: “Never Write With A.I.” His argument isn’t frivolous. Writing makes thought clearer, more rigorous and more accountable. Surrender too much of the writing, and you’ll surrender some of the thinking with it. But lawyers should think about the technology differently.
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Michael Smith @msmith750.bsky.social · 02/10/2026
Drama unfolds
A skunk stands on a short brick wall looking down with disdain at an approaching possum.
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Michael Smith @msmith750.bsky.social · 01/10/2026
October is here. Choose your fighter.
Joyce Carol Oates tweet criticizing a house covered in skeletons as a dwelling of those who cannot or choose not to feel grief for departed loved ones.Francis Fukuyama tweet criticizing a house decorated with a child's skeleton as trivializing war crimes
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Mr. Joshua @pantspants.bsky.social · 01/10/2026
Ballpoint pen, watercolor, colored pencil, a little crayon, and charcoal pencil. 

Our guy pulls up deep in the forest on his 2-speed bike. He’s flanked by tall dark trees and his path is blocked by a massive spider. He lets the Big Fella know it’s on. “Big Fella,” he says. “I fixed my 2-speed. You still wanna race.” Reader, you know Big Fella wants in on that action. Next slide.Against a starry night sky we see silhouettes of Big Fella and our man racing down a hill. It’s unclear in the drawing who will win but Big Fella is likely about to pull away.
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Michael Smith @msmith750.bsky.social · 01/10/2026
We anticipate that it's only a short time before the AI hype crowd begins to push for CertiorarAI in earnest, so best to get out ahead of this stupidity. More fundamentally, we hope those who agree that CertiorarAI is a bad idea will apply these criticisms to current practices as well.
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Michael Smith @msmith750.bsky.social · 01/10/2026
AND YET all of these criticisms apply to the Court's current certiorari processes, which are hidden from public view, shielded from accountability and scrutiny, and follow patterns of over- and under-attention to certain cases, plus accepting more cases at premature stages of litigation.
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Michael Smith @msmith750.bsky.social · 01/10/2026
But wait. This is a terrible idea! The cert process will become a black box. Accountability will evaporate, with Justices pointing to machines to excuse their case selection practices. Problematic patterns of case selection will become entrenched as AI trains on past practices. Awful!
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Michael Smith @msmith750.bsky.social · 01/10/2026
The unending avalanche of AI hype has gotten to us! We see the thousands of certiorari petitions the Court receives each year, and realize that this is a perfect place to use AI. Plug in the papers, and the Court gets crisp memos and vote suggestions in an instant. Think of the time saved!
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Michael Smith @msmith750.bsky.social · 01/10/2026
It's time for the Supreme Court to use AI to decide what cases it will hear! "CertiorarAI," forthcoming in the Washburn Law Review (coauthored with @alexklein.bsky.social). papers.ssrn.com/sol3/papers....
CertiorarAI
66 Washburn Law Journal (forthcoming 2027)

32 Pages Posted:
Alexandra L. Klein
Washington and Lee University - School of Law

Michael L. Smith
University of Oklahoma - College of Law

Date Written: October 01, 2026

Abstract
Each term, the Supreme Court must sift through thousands of petitions for certiorari and select those that are worthy of decisions on the merits. This process isn’t working terribly well. The number of cases the Court hears is low and continues to decline. It’s hard to tell how much time and effort the Court spends on these determinations—or how seriously it takes a process in which the default is denial—because its analysis and votes on case selection aren’t publicly available. We propose a solution: hand the selection of cases over to artificial intelligence to make these thousands of certiorari decisions in minutes. We call this new process CertiorarAI.

Sounds good, doesn’t it? No? You got us. We hate this proposal. It would entrench preexisting patterns of case selection through biased training data, it would make the certiorari process a black box, and it would outsource work requiring careful deliberation to an automated process. CertiorarAI: terrible in every way. 

Yet these same criticisms also apply to the Court’s existing procedures for case selection. The Court exhibits strategic patterns and preferences in its exercise of near-absolute docket discretion, its votes and deliberations over certiorari petitions aren’t public, and much of the work of sifting through and analyzing these petitions is outsourced to clerks. CertiorarAI (and its well-deserved criticism) illuminates these shortcomings and the need for meaningful scrutiny of the Court’s docket selection processes.
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Valerie Gutmann Koch @vgkoch.bsky.social · 29/09/2026
My newest article, Disinformed Consent, is now posted on SSRN. In it, I grapple with the problem of state-mandated medical disinformation – false medical claims disseminated with awareness of their inaccuracy or with deliberate disregard for scientific consensus. papers.ssrn.com/sol3/papers....
papers.ssrn.com
Disinformed Consent
At both the state and federal level, lawmakers and regulators are increasingly interfering with the physician’s independent duty to provide patients w
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Michael Smith @msmith750.bsky.social · 01/10/2026
Who?
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Michael Smith @msmith750.bsky.social · 30/09/2026
A bunch of weirdos spent years eating handfuls of thumbtacks and are now complaining that their stomachs hurt. www.wsj.com/tech/ai/clau...
wsj.com
Now We’re All Starting to Talk Like AI Chatbots Too
In team meetings, group texts and over lattes, people are catching themselves using ‘prompt speak.’
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Michael Smith @msmith750.bsky.social · 29/09/2026
Please. Accept the mystery.
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Christine Corcos @lpcprof.bsky.social · 28/09/2026
Smith on The Absence of Original Meaning in Second Amendment Cases / @msmith750.bsky.social lawlit.blogspot.com/2026/09/smit...
lawlit.blogspot.com
Smith on The Absence of Original Meaning in Second Amendment Cases
Michael L. Smith, University of Oklahoma College of Law, is publishing The Absence of Original Meaning in Second Amendment Cases in volume ...
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Michael Smith @msmith750.bsky.social · 28/09/2026
Alert, @sawilliams.bsky.social
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leon @leyawn.bsky.social · 27/09/2026
the year is 2065. across a barren wasteland, a gang of marauders are riding war buggies. hooting and hollering, they chase down the last remaining people on earth who have not heard “choosin’ texas” by ella langley
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beetle moses @beetlemoses.bsky.social · 26/09/2026
Three panel comic. Panel 1: 5 million years ago - a bunch of bedbugs lounge around in a living room, looking totally bored. Panel 2: another bedbug excitedly bursts through the front door and exclaims, “someone invented beds!” Panel 3: one of the bedbugs looks over their shoulder at the other and says, “you’re joking”
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Mr. Joshua @pantspants.bsky.social · 26/09/2026
“Spaghetti Night.” Pen and copic gray marker on paper. 

Our man is in the kitchen making spaghetti for his guests, who have become increasingly rowdy as they wait for dinner. More on them in a moment. He speaks into his landline phone with his oven mitts on, “Everybody’s pretty riled up for spaghetti night.” He is correct because sure enough we see his riled up dinner guests in the background. Two men play wrestle as a woman raises her hand to spank one of the wrestler's cheeks. She’s got great leverage on the windup so those cheeks are about to be pummeled, reader. Another man finds himself being carried by a woman with a crew-cut. Her strength is on display here because despite the man’s weight she’s able to effortlessly run around the living room with him slung over her shoulder like a ragdoll. Behind them we see another spaghetti night guest pumping his fists and shouting to the ceiling. Perhaps howling. 

Artist’s note: One of my favorite drawings. Love seeing the whole group having a great time together.
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Michael Smith @msmith750.bsky.social · 25/09/2026
While I pride myself on my Oklahoma animal photos and updates, I'm still chasing after the lifestyle I enjoyed in Boise with my incredibly well-trained squirrels.
A squirrel standing in a doorway, photographed up close. It is playing a peanut in the shell like a flute.Close up photo of a squirrel on a tree grabbing a peanut from a hand with its mouthA squirrel in a doorway, reaching out for a falling pecanClose up photo of a squirrel looking in the front door. Nuts are strewn about the ground.
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State Court Report @statecourtreport.org · 25/09/2026
@howard.edu's Robinson Woodward-Burns analyzed 1,528 state constitutional amendments proposed over the last two decades, charting differences across regions, types of provisions, and more.
statecourtreport.org
Evaluating 20 Years of State Constitutional Changes
The data on state constitutional amendments shows the broad range of rights affected and how reformers approach changes to the documents.
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Michael Smith @msmith750.bsky.social · 25/09/2026
Dinner buddies
A skunk and a black and white cat eating catfood together out on the front stoop.
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Michael Smith @msmith750.bsky.social · 24/09/2026
Anyway, enjoy.
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Michael Smith @msmith750.bsky.social · 24/09/2026
There's also something maddening about being confronted with the breadth and harshness of the criminal legal system and arguing against it on technical historical grounds. Things aren't great! Rights are being violated! That's something we can argue!
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Michael Smith @msmith750.bsky.social · 24/09/2026
In any event, good on the symposium organizers for accepting my proposal, which was essentially, "Nothing will come of this," leading to the full-length article proclaiming that nothing will come of this due to the Court's selective reliance on originalism and harsh historical practices.
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Michael Smith @msmith750.bsky.social · 24/09/2026
True Smith Enthusiasts will likely recognize this as the symposium where my brain exploded. I'm better now. bsky.app/profile/msmi...
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Michael Smith @msmith750.bsky.social · 24/09/2026
My article, "Criminal Reform and Originalism's Limits," is forthcoming in the Ohio State Journal of Criminal Law! papers.ssrn.com/sol3/papers.... This paper will be part of the 2026 Symposium on Originalism and Criminal Justice, which I attended a few weeks ago.
Criminal Reform and Originalism's Limits
25 Ohio State Journal of Criminal Law (forthcoming 2027)

42 Pages Posted:
Michael L. Smith
University of Oklahoma - College of Law

Date Written: September 24, 2026

Abstract
In the face of a harsh criminal legal system and unforgiving doctrine, some proponents of reform suggest that a turn to originalism may be warranted. Historical practices and founding-era understandings of the Constitution’s text, they argue, are inconsistent with modern treatment of those investigated, charged, and convicted. This Article argues that a turn to originalism is unlikely to make a substantial difference due to the Court’s selective application of originalism—a selectivity exacerbated in the criminal context by the Court’s focus on adjudicative considerations like federalism and deference to law enforcement. History also contains plenty of evidence supporting harsh treatment, and shifts focus away from immediate, profound harms current practices cause. While originalism may be a tool worth considering for advocates who must make every available argument, it may work best outside the courtroom to ground arguments for reform that might appeal to those otherwise inclined against change.

Keywords: originalism, criminal law, criminal procedure, criminal reform, constitutional law, constitutional interpretation, history, traditionalism, pluralism
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Lawrence Solum @lsolum.bsky.social · 24/09/2026
Ishitani on Making Sense of Federal Recognition M. Henry Ishitani (Yale University - Law School; University of Tulsa College of Law; Yale University - Department of History) has posted…...
legaltheoryblog.com
Ishitani on Making Sense of Federal Recognition
M. Henry Ishitani (Yale University - Law School; University of Tulsa College of Law; Yale University - Department of History) has posted Making Sense of Federal Recognition on SSRN. Here is the abstract: This Article offers the first comprehensive account of federal recognition power—the authority to recognize the sovereignty of other states. The recognition of foreign sovereigns undergirds international law. Likewise, federal recognition of tribal sovereignty serves as the bedrock of federal Indian law.
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Michael Smith @msmith750.bsky.social · 24/09/2026
Probably just some nasty variety of Chex Mix, yuck
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Guha Krishnamurthi @ggkrishnamoomoo.bsky.social · 23/09/2026
Some thoughts about a tension between textualism and originalism. It seems like the way the "history and tradition" test is being applied is anti-textualist... 🧐 Thanks to @dorfonlaw.bsky.social as always
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Connor Ewing @cmewing.bsky.social · 22/09/2026
Writing is fun. You endure hours of excruciating pain and self-doubt. But in the end, you’ve created something. And then you get to hate that thing.
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Michael Smith @msmith750.bsky.social · 23/09/2026
This happened to me over the summer when I wrote too much.
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Noah Chauvin @noahchauvin.bsky.social · 22/09/2026
Just as OU faculty must take First Amendment training, Oklahoma law mandates free speech training for students at the state's public colleges. I've posted an essay (forthcoming in the Oklahoma Bar Journal) that covers the non-campus-specific aspects of the training. papers.ssrn.com/sol3/papers....
papers.ssrn.com
Free Speech at Oklahoma's Public Colleges and Universities
This essay is a modified version of a free speech training for new students at Oklahoma's public colleges and universities.  It covers the non-institution-
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beetle moses @beetlemoses.bsky.social · 22/09/2026
Four panel comic. Panel 1: two guys playing basketball outside. Guy 1 looks off to the side and asks, “is someone in the window?” Panel 2: a creepy ghost woman stands in the upstairs window of a house, watching them. Panel 3: Guy 2 calls up to the creepy ghost, “you wanna hoop?” Panel 4: the ghost is outside playing basketball with them. She bricks a shot from the free throw line. Guy 2 says, “that’s H-O-R.”
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Chestbursty @chestrovert.bsky.social · 22/09/2026
Do things that bring joy to your heart and will outlast you. Write a book or eat a building
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